Citation Nr: 0520005
Decision Date: 07/22/05 Archive Date: 08/03/05
DOCKET NO. 03-31 923 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for residuals of a cold
injury in the bilateral lower extremities.
2. Entitlement to specially adapted housing or a special
home adaptation grant.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from May 1951 to April
1955.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from February 1999 and February
2003 rating decisions by the Department of Veterans Affairs
(hereinafter VA) Regional Office in St. Petersburg, Florida,
(hereinafter RO). In November 2004, a hearing was held at
the RO before the Acting Veterans Law Judge signing this
document, who was designated by the Chairman to conduct the
hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). At
this hearing, the issue of entitlement to service connection
for residuals of a cold injury in the bilateral upper
extremities was withdrawn by the veteran. As such, the only
issues on appeal are as listed on the title page.
FINDINGS OF FACT
1. There is no competent medical evidence linking a current
disability in the bilateral lower extremities to exposure to
the cold during service or any in-service symptomatology or
pathology.
2. Service connection has been granted for chorioretinitis
of the right eye but service connection has been denied for
any disability in the left eye; a 100 percent rating has been
granted for bilateral blindness under 38 C.F.R. § 3.383 for
blindness in one eye as a result of service-connected
disability and blindness in the other eye as result of non
service-connected disability; a 20 percent service-connected
disability rating is in effect for post operative residuals
of a release of the right subscapular nerve and a 10 percent
service-connected disability rating is in effect for post-
operative residuals of an osteochondroma of the right
scapula.
3. Service connected disability does not result in the loss
of use of a lower extremity (foot) which so affects the
functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair.
4. The veteran is not entitled to compensation for the
anatomical loss or loss of use of both hands.
5. Neither ankylosis of a knee or hip is demonstrated due to
service connected disability, nor is a lower extremity shown
to be shortened 3 1/2 inches or more due to a service
connected disability.
6. Complete paralysis of the external popliteal nerve due to
a service connected disability causing foot drop is not
shown.
7. It has not been shown that due to a service connected
disability, the veteran has the anatomical loss or loss of
use of a foot, nor is functioning of a foot shown to be so
limited due to a service connected disability that the
veteran would be equally well-served by an amputation below
the knee with use of a suitable prosthetic appliance.
CONCLUSIONS OF LAW
1. The veteran does not have a cold weather injury in the
bilateral lower extremities that was incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.102, 3.303 (2004).
2. The criteria for entitlement to a certificate of
eligibility for assistance in acquiring specially adapted
housing are not met. 38 U.S.C.A. §§ 2101(a), 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.809, 4.63 (2004).
3. The criteria for entitlement to a certificate of
eligibility for assistance in acquiring a special home
adaptation grant are not met. 38 U.S.C.A. §§ 2101(b), 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.809a, 4.63 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Preliminary Matters - VCAA
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2003)). In addition, VA
has published regulations to implement many of the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2004)).
The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA. See, e.g., Mayfield v.
Nicholson, ___ Vet. App. ___, No. 02-1077 (April 14, 2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans
of America v. Secretary of Veterans Affairs, 345 F.3d 1344
(Fed. Cir. 2003) (but see Public Law No. 108-183, § 701, 117
Stat. 2651, 2670-71 (Dec. 16, 2003); Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet.
App. 112 (2004). See also VAOPGCPREC 11-00 (Nov. 27, 2000);
VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec.
22, 2003); VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. The
Board is aware that in Pelegrini, cited above, the Court
stated that, under the VCAA,
the Secretary must provide notice . . . that
informs the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim." 38 C.F.R.
§ 3.159(b)(1); see 38 U.S.C. § 5103A(g) . . . .
Pelegrini, supra, at 121.
The VA General Counsel has issued a precedent opinion
interpreting the Court's decision in Pelegrini. In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,
the Board must ensure that complying notice is
provided unless the Board makes findings regarding
the completeness of the record or as to other
facts that would permit [a conclusion] that the
notice error was harmless, including an
enumeration of all evidence now missing from the
record that must be a part of the record for the
claimant to prevail on the claim.
VAOPGCPREC 7-2004 (July 16, 2004).
In a recent case, Mayfield v. Nicholson, supra, the Court
addressed the meaning of prejudicial error (38 U.S.C.A.
§ 7261(b)), what burden each party bears with regard to the
Court taking due account of the rule of prejudicial error,
and the application of prejudicial error in the context of
the VCAA duty-to-notify (38 U.S.C.A. § 5103(a)).
Considering the decisions of the Court in Pelegrini and
Mayfield and the opinion of the General Counsel, the Board
finds that the requirements of the VCAA have been satisfied
in this matter, as discussed below.
In May 2002 and September 2003 letters, the RO sent the
veteran notice letters which complied with all the notice
provisions of the VCAA as stated above. In addition, the
veteran was advised, by virtue of detailed November 2000 and
October 2003 statements of the case (SOCs) issued during the
pendency of this appeal, of the pertinent law, and what the
evidence must show in order to substantiate his claims. The
Board therefore believes that appropriate notice has been
given in this case. The Board notes, in addition, that a
substantial body of lay and medical evidence was developed
with respect to the veteran's claim, and that the November
2000 and October 2003 SOCs issued by the RO clarified what
evidence would be required to establish entitlement to the
benefits sought. Further, the claims file reflects that the
October 2003 SOC contained the new reasonable doubt and duty-
to-assist regulations codified at 38 C.F.R. §§ 3.102, 3.159
(2004). See Charles v. Principi, 16 Vet. App. 370, 373-74
(2002). All the above notice documents must be read in the
context of prior, relatively contemporaneous communications
from the RO. See Mayfield v. Nicholson, supra, slip op. at
27. See Mayfield v. Nicholson, supra, slip op. at 27.
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
any failure in the timing or language of VCAA notice by the
RO constituted harmless error.
Accordingly, the Board finds that VA has satisfied its duty
to assist the veteran in apprising him as to the evidence
needed, and in obtaining evidence pertaining to his claims,
under the VCAA. The Board, therefore, finds that no useful
purpose would be served in remanding this matter for yet more
development. Such a remand would result in unnecessarily
imposing additional burdens on VA, with no additional benefit
flowing to the veteran. The U.S. Court of Appeals for
Veterans Claims has held that such remands are to be avoided.
See Winters v. West, 12 Vet. App. 203 (1999) (en banc),
vacated on other grounds sub nom. Winters v. Gober, 219 F.3d
1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In fact, the Court has stated, "The VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims." Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If the
probative weight of the negative evidence exceeds that of the
positive, the claim shall be denied. Gilbert, 1 Vet. App. at
49.
II. Legal Criteria/Analysis
A. Cold Injury in the Lower Extremities
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304.
There are some disabilities, including arthritis, for which
service connection may be presumed if the disorder is
manifested to a degree of 10 percent or more within one year
of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). When a condition noted during service is not shown
to be chronic, or the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support the
claim. Id. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
It is clear that "[t]he regulations regarding service
connection do not require that a veteran must establish
service connection through medical records alone."
Triplette v. Principi, 4 Vet. App. 45, 49 (1993), citing
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is
equally clear, however, that the resolution of issues which
involve medical knowledge, such as diagnosis of disability
and determination of medical etiology, require professional
evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"), aff'd sub nom. Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998).
With the above criteria in mind, the relevant facts will be
summarized. The service medical records, including the April
1955 separation examination, do not reflect treatment for any
disability attributed to exposure to the cold, or for any
disability in the lower extremities. The veteran did not
refer to having any cold injuries or lower extremity
disability in his original application for VA benefits filed
in July 1955, nor was any such disability shown on the first
VA examination conducted after service in October 1955. A
review of the VA outpatient and inpatient treatment records
associated with the claims file dated in 1963 and the 1970s
and 1980s does not reflect any treatment for a cold injury,
and instead reflect treatment for other disabilities,
including chorioretinitis in the right eye and problems in
the right shoulder, for which service connection has been
granted. Review of the more recent VA clinical evidence of
record includes a report from a September 1999 VA examination
that indicates the veteran had no evidence of focal radicular
problems in the lower extremities, but that he did have
peripheral vascular and sensory changes related to diabetes.
There is of record a Letter of Commendation dated in August
1952 praising the veteran for assisting in the saving of a
shipmate's life by keeping him afloat and for other heroic
action during a major fire aboard the U.S.S. Boxer which
forced the veteran to abandon ship. Of record also is a
letter from the Navy Department indicating the veteran was
awarded the Combat Action Ribbon. The veteran testified at
his November 2004 hearing that as a result of being exposed
to the cold water when he was forced to abandon ship in 1952,
he developed "nerve damage" in his legs. At the time of
the hearing, the veteran asserted that his legs are always
numb and "feel like a rock." However, while the record
documents, as set forth above, the heroic efforts by the
veteran during the fire to his ship in 1952, there is no
objective or competent medical evidence linking a current
disability in the lower extremities to exposure to the cold
during service, or any other in-service symptomatology or
pathology.
The Board has respectfully considered the assertions of the
veteran contending that he has current disability in the
lower extremities that is the result of exposure to the cold
during service. However, as he has not demonstrated any
medical expertise, he is not deemed competent to present
evidence as to medical causation. See Routen, Espiritu,
supra. In summary, the Board finds the probative weight of
the negative evidence of record, to include the negative
service medical records and the lack of any competent medical
evidence demonstrating that the veteran has a current lower
extremity disability due to service, to include exposure to
the cold therein, to exceed the probative weight of the
positive evidence, which is essentially limited to
unsupported and speculative assertions submitted by and on
behalf of the veteran. As a result, the claim for service
connection for a cold injury in the lower extremities must be
denied. Gilbert, supra.
B. Certificate of Eligibility for Assistance in Acquiring
Specially Adapted Housing
A certificate of eligibility for assistance in acquiring
specially adapted housing may be provided if, among other
things, the veteran is entitled to service connected
compensation for permanent and total disability due to: (1)
The loss, or loss of use, of both lower extremities such as
to preclude locomotion without the aid of braces, crutches,
canes, or a wheelchair, or (2) Blindness in both eyes, having
only light perception, plus the anatomical loss or loss of
use of one lower extremity, or (3) The loss or loss of use of
one lower extremity together with residuals of organic
disease or injury which so affect the functions of balance or
propulsion as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair, or (4) The loss or
loss of use of one lower extremity together with the loss or
loss of use of one upper extremity which so affect the
functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair.
38 U.S.C.A. § 2101(a)(1)(2)(3); 38 C.F.R. §
3.809(b)(1)(2)(3)(4).
The term "loss of use" of a hand or foot is defined by
38 C.F.R. § 3.350(a)(2) as that condition where no effective
function remains other than that which would be equally well
served by an amputation stump at the site of election below
elbow or knee with use of a suitable prosthetic appliance.
The determination will be made on the basis of the actual
remaining function, whether the acts of grasping,
manipulation, etc. in the case of the hand, or balance,
propulsion, etc., in the case of a foot, could be
accomplished equally well by an amputation stump with
prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63
which constitute loss of use of a foot or hand are extremely
unfavorable ankylosis of the knee, or complete ankylosis of
two major joints of an extremity, or shortening of the lower
extremity of 3 1/2 inches or more. Also considered as loss
of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete
paralysis of the external popliteal (common peroneal) nerve
and consequent foot drop, accompanied by characteristic
organic changes, including trophic and circulatory
disturbances and other concomitants confirmatory of complete
paralysis of this nerve. Under 38 C.F.R. § 4.124a, DC 8521,
complete paralysis also encompasses foot drop and slight
droop of the first phalanges of all toes, an inability to
dorsiflex the foot, loss of extension (dorsal flexion) of the
proximal phalanges of the toes, loss of abduction of the
foot, weakened adduction of the foot, and anesthesia covering
the entire dorsum of the foot and toes.
Turing to a summary of the relevant facts, service
connection, as indicated in the previous section, has been
granted for chorioretinitis of the right eye. However,
service connection has been denied for any disability in the
left eye, to include most recently by rating action dated in
October 1999. A 100 percent has been granted for bilateral
blindness under 38 C.F.R. § 3.383 for blindness in one eye as
a result of service-connected disability and blindness in the
other eye as result of non service-connected disability. In
addition, a 20 percent service-connected disability rating is
in effect for post operative residuals of a release of the
right subscapular nerve and a 10 percent service-connected
disability rating is in effect for post-operative residuals
of an osteochondroma of the right scapula.
The Board emphasizes that at the November 2004 hearing, the
veteran's representative conceded that given the applicable
criteria, if the claim for service connection for a cold
weather injury in the lower extremities was denied, the claim
for entitlement to specially adaptive housing or a special
home adaptation grant could not be granted. See November
2004 hearing transcript, Page 8. Also, the Board emphasizes
that the benefits sought can only be based on service-
connected disability.
Applying the pertinent legal criteria to the facts and
contentions summarized above, while the Board does not
dispute the significant nature of the veteran's disability,
to include the fact that the veteran requires the use of a
scooter, there is no indication that this is due to service
connected disability. In particular, the objective evidence
of record also does not indicate that there is, due to
service-connected disability, ankylosis, or foot drop as
would be required to warrant a finding of "loss of use"
under 38 C.F.R. § 4.63, nor is there evidence that service-
connected disability includes shortening of a lower extremity
to 3 1/2 inches or more so as to meet the criteria for "loss
of use" as defined by regulation. With regard to the
veteran's blindness, as discussed below, service connection
was only granted for chorioretinitis in the right eye, as the
100 percent rating for bilateral blindness was granted under
the provisions of 38 C.F.R. § 3.383 for blindness in one
service-connected eye and another non-service connected eye.
Nonetheless, as entitlement to a certificate of eligibility
for assistance in acquiring specially adapted housing
requires, in addition to blindness, the loss or loss of use
one lower extremity due to service connected disability, this
benefit could not be granted even if both eyes were
considered to be service-connected. 38 U.S.C.A.
§ 2101(a)(2)(A)(B). In short, as the criteria of 38 U.S.C.A.
§ 2101(a) and 38 C.F.R. § 3.809(b) are controlling,
entitlement to a certificate of eligibility for assistance in
acquiring specially adapted housing cannot be granted.
C. Certificate of Eligibility for
Assistance in Acquiring a Special Home
Adaptation Grant
In order for a veteran to be entitled to a certificate of
eligibility for assistance in acquiring special home
adaptation, he must be entitled to compensation for permanent
and total disability which (1) is due to blindness in both
eyes with 5/200 visual acuity or less, or (2) includes the
anatomical loss or loss of use of both hands.
38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a.
As noted above, service connection has only been granted for
a right eye disability, although a 100 percent rating for
blindness is currently in effect under 38 C.F.R. § 3.383
based on blindness in both service-connected and non-service
connected eyes. As to whether this 100 percent rating for
blindness entitles the veteran to a special home adaptation
grant, an opinion rendered by the VA Office of General
Counsel concerning whether a veteran who was receiving
compensation pursuant to 38 U.S.C. § 1151 due to blindness in
both eyes rendered him eligible for a special housing
adaptation grant, involves a fact pattern analogous to the
instant case. See VAOPGCPREC 24-97 (July 3, 1997). In this
opinion, it was held that a veteran with a disability that
resulted from VA hospitalization or medical or surgical
treatment who has been determined eligible for compensation
"as if" such injury were service connected pursuant to 38
U.S.C. § 1151 was not eligible for a special housing
adaptation grant.
Extending the logic in the General Counsel's opinion to the
instant case, as the 100 percent rating currently in effect
under 38 C.F.R. § 3.383 clearly contemplates disability in a
non-service connected eye (the left eye in the instant case),
but the 100 percent rating is assigned, essentially, "as
if" both eyes were service connected, the criteria for a
special housing adaptation grant do not contemplate a rating
assigned under 38 C.F.R. § 3.383 given the interpretation of
the General Counsel. With respect to the issue of "loss of
use" of both hands, it has not been contended or otherwise
shown that there is loss of use of a hand due to a service-
connected disability. Thus, the Board finds that entitlement
to benefits under the provisions of 38 U.S.C.A. § 2101(b); 38
C.F.R. § 3.809a cannot be granted.
ORDER
Entitlement to service connection for residuals of a cold
injury in the bilateral lower extremities is denied.
Entitlement to specially adaptive housing or a special home
adaptation grant is denied.
____________________________________________
K. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs